Sanctions

A reflexive “save everything” approach is undesirable and provides no secure haven from sanctions. Electronic information systems both produce and destroy information beyond what human creators of information directly control or even know about. Amended Rule 37(f) reflects these features of electronic information systems in clarifying that unintentional losses of electronically stored information, resulting from the “routine” and “good faith” operation of electronic information systems, are not sanctionable “absent exceptional circumstances.”

Rule 37(f) is not a “safe harbor” from sanctions for such a loss of electronically stored information; rather, it is a standard that provides guidance to litigants and judges. Such guidance is necessary to confront sanctions motions premised on the fact that much electronically stored information is routinely destroyed for reasons unrelated to pending or anticipated litigation. New Rule 37(f) signals that the analysis used to resolve spoliation allegations in conventional discovery cannot simply be carried over to electronic discovery.

This guidance has already proven helpful. But the focus on spoliation sanctions may understate the potential for a more general increase in sanctions motions in electronic discovery. This potential results from a number of factors. One is that the rule amendments and case law recognize the increased need for early and detailed management that electronic discovery presents by imposing increased responsibility for disclosing information about electronically stored information early in the case. Another is that, particularly in cases in which one party has little information and the other party is a major data producer, electronic discovery requests can be a source of great leverage, making it more critical for judges to insist on tailored and specific discovery requests. A third factor that may lead to increased sanctions motions is that judges seeking effective control over electronic discovery may impose unrealistically stringent demands on litigants and lawyers, which will predictably lead to an increase in sanctions motions if parties cannot meet the demands.

Lee H. Rosenthal is a United States District Judge for the Southern District of Texas. Rebecca Bolin, Yale Law School ‘06, provided helpful assistance and suggestions.